Contesting a Will

When a loved ones dies, if you are suspicious or unhappy with the contents of their will you may be able to challenge or contest the will’s validity.

Grounds for challenging a will

There are a number of reasons for doing so:

1. Lack of proper formalities

All wills must follow certain formalities in order to be valid, for example they must be written, signed and witnessed correctly. It is relatively easy to make a mistake when executing a will and homemade wills are particularly susceptible to challenge for failing to comply with formalities.

2. Lack of testamentary capacity

A person must be of sound mind and be able to comprehend their assets when making a will. Challenging a will based on lack of capacity often requires evidence from medical experts, to discover whether the person had signs of confusion or dementia when making the will.

3. Lack of knowledge and approval

A person must know and approve of the contents of their will. If the circumstances surrounding the preparation or execution of the will ‘excite suspicion’, it may not be valid – for example, if the will was drafted by one of its beneficiaries.

4. Undue influence

If a will does not reflect the true wishes of the testator it can be set aside. Undue influence can take various and subtle forms – bullying, intimidation or even maligning a third party to cause someone to change their will. It must be proved that the person was coerced into making the will, it is not enough that they were persuaded, and coercion must always be demonstrated with strong evidence.

5. Forgery or Fraud

If a will has been tampered with or was not signed by the deceased, it will not be valid. Fraud is a serious allegation and must be supported by evidence, usually from a handwriting analysis expert.

6. Rectification

If there was a clerical error when making the will, or the deceased’s instructions were not understood, an application for the will to be rectified can be made.

Time limits

The time limit to challenge a will is 12 years from the date of death, or in the case of fraud there is no time limit. It is however vital to take expert legal advice as soon as there are grounds to do so, to prevent the estate being distributed based on an incorrect will.

Nelsons has a team of solicitors who can help you challenge a will. Our team specialise in will disputes and includes members of the Association of Contentious Trust and Probate Specialists (ACTAPS).

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